Saturday, November 14, 2009

My Last Word on Rogue Amoeba

Correction: The court case (Bayer v. United Drug) was decided in 1921, not 1917. 1917 was the Treaty of Versaille, which declared Aspirin generic and laid the groundwork for the court case. I apologize for the error

The last two days have been very interesting. Thank you to everyone who e-mailed or tweeted me with salient points, whether you agreed with me or not, I'm richer for the discussion, and many of you brought up points I hadn't considered, so thank you. You've helped me clarify my thoughts on this matter tremendously.

Unfortunately, as interesting and fun as the discussion has (mostly) been, I have to bring it to an end because it's taking time away from finishing More iPhone 3 Development. I simply can't meet our publication deadline if I spend any more time on this discussion right now. But I do have one more point that I want to bring up. I didn't mention it earlier because I wanted to make sure it was true before talking about it. It is, so I'm adding it to the discussion.

But first, let me point out that there are actually two arguments that seem to be going on simultaneously, and not everyone is making a distinction between them:
  1. Would it be good for the developer community and/or App Store Consumers if Apple allowed Rogue Amoeba to use these images in this way?
  2. Was it unreasonable for Apple to reject the application?
I think we can all agree that the answer to the first question is a resounding YES. If I implied that I think otherwise, I apologize for it. It was not my intention.

But, if you're going to go storming off after throwing a temper tantrum that would make a pre-schooler proud, in my mind, the answer to the second question had better also be YES. As long as Apple had a valid, substantive reason for rejecting the application, then the answer to the second question is NO. Not getting your way does not mean somebody else is being unreasonable. If the other party wasn't unreasonable, a hissy-fit is an inappropriate response to not getting what you want.

In my last two posts, I identified several reasons why Apple might have refused to let Rogue Amoeba use the various images of Apple computers in their iPhone application. Here's the one I didn't mention before, and it's stronger than the others: Apple has trademarked the distinctive appearance of their computers. In other words, these images aren't just copyrighted images, they are Apple's trademarks.

Now, if you know anything about Trademark law, then a little light probably just want off for you. If not, let me tell you a little story.

In the late eighteen hundreds, a company called Bayer was selling a wonder drug under the trademarked brand name "Aspirin". In 1917 1921, a court ruled that Bayer hadn't taken sufficient steps to protect that trademark, and the term had become generic. Bayer lost ownership of a brand name worth millions, probably even billions, of dollars. Today, you can buy cheap, generic medicine under the name "aspirin" from dozens of manufacturers. You can't buy generic "tylenol", you have to buy "acetaminophen" or Tylenol™. You can't buy generic "advil", you have to buy "ibuprofen" or Advil™. But, you can buy generic aspirin. Anybody, not just Bayer, can sell acetylsalicylic acid under that name.

No corporate legal department today is going to let that happen on their watch. No lawyer wants to be the one who allowed his or her company to lose rights to a valuable brand (they'd likely also lose their job in the process). As a practical matter, corporations have to take more aggressive steps to enforce their trademarks than they do with plain old copyrighted material, or they run the risk of losing them. They don't have to be perfect in their enforcement, they are allowed to be human, but if you put a violation in their lap by submitting it to the App Store, they really don't have much choice but to reject it if they realize it's there.

That it took three months to get a final rejection is almost certainly due to the fact that there was a concerted effort by a number of people inside Apple on Rogue Amoeba's behalf. In the end, I would bet money that the legal department just wouldn't sign off on any solution that included Rogue Amoeba's use of Apple's trademarked images.

Is it unreasonable for a company to protect its trademarks? Of course not. Every first year law student knows about aspirin and knows that corporations have to protect their trademarks. Was it unreasonable for a legal department to protect their company's interests? Of course not either, that's their fucking job description.

Now, could Apple have been more forthcoming and communicated better? Abso-fucking-lutely. Are they being more aggressive than the law requires? Possibly, but not definitely. All IP involves gray areas with no fine delineations. When in doubt, any corporation (not just Apple) will be more aggressive than they need to be, since being less aggressive can lose them valuable rights.

Let me also point out that Apple's Trademark Guidelines for Third Parties, which are incorporated by reference into the iPhone SDK agreement (§2.6), explicitly state:
2. Apple Logo and Apple-owned Graphic Symbols: You may not use the Apple Logo or any other Apple-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Apple, such as a reseller agreement. (emphasis mine)
In the course of this discussion, many people have claimed that the SDK agreement doesn't actually prohibit the use of these images in an iPhone application.

But, they do, in plain language that it doesn't take a lawyer to understand. Anybody, who is claiming that the SDK agreement doesn't prohibit the use of these images in an iPhone application (including John Gruber) is wrong. If an agreement incorporates another document by reference, that document becomes part of the legal agreement, and the trademark guidelines, which are incorporated by reference into the SDK agreement, explicitly disallow the use of "Apple-owned Graphic Symbols" without written permission. This is so unambiguous and clear, it's almost hard to believe a lawyer wrote it.

After more thought, I just don't think there's any gray area here at all. Rogue Amoeba wanted an exception to the terms of the SDK agreement. They may not have realized that's what they were asking for but that is, indeed, what they were after. They didn't get the special treatment they wanted, so they decided to take their ball and go home, end of story.

The fact that the images aren't stored in the iPhone application is completely irrelevant to the discussion because Rogue Amoeba has complete control over the code that sends the image, and the code that displays it. If excluding disallowed content from the application bundle was a real loophole, Apple would have to allow, for example, applications that served porn, but didn't contain the porn in the application bundle. That's completely different than a web browser that's capable of showing trademarks or copyrighted images (or porn), because what is shown is completely at the discretion of the user, not the software. If the software chooses what image to show and where to pull it from, the actual source location of that image is irrelevant.

The fact that the images are available through a public API on the Mac is also irrelevant because those APIs are designed to let you show images that are already on the machine to the person who is sitting at that machine. The images are already part of the operating system. Just because that API is public doesn't mean you can do whatever you want with the image once you have it. I can pull one of Apple's trademarked images off their web site. The fact that it's been made available publicly doesn't give me the right to use it however I want.